Scrutinizing Developments in Texas Appellate Law

Jun 04, 2015

I have posted before (and here and here) about a debate that confirms that appellate lawyers are the nerds of the legal world: should citations go in footnotes or in the text? Bryan Garner has been on a crusade for years to convince lawyers to put them in footnotes. For several reasons,I disagree with Bryan, and these are addressed in prior posts. But the trump card for legal writing is "what do judges want?"

This morning, at the UT Conference on State and Federal Appeals, Scott Rothernberg, Kent Rutter, and JoAnn Storey reported on a survey of Texas appellate judges that they conducted this spring. This survey confirms that judges do not want lawyers to use footnotes for citations. Of the survey respondents (which were 78% of Texas appellate judges), 92% said that footnotes should be used "sparingly." Moreover, 41% said citations should be in the text and another 44% said citations should be in the text except for string cites. Interestingly, 8% said that they preferred citations in the text because briefs are now filed electronically.

This is not surprising. It is consistent with results from a similar survey in 2009 (although even more judges now say footnotes should be used sparingly). The San Antonio Court of Appeals goes so far as to express a preference for textual citations on its website.

So, if you want to keep your readers happy and if your readers are Texas appellate judges, you should generally include citations in the text, not in footnotes.

May 06, 2015

I recently had an article published in the Dallas Bar Association Headnotes. In the article, I posit a situation in which you are handed a draft motion on the day it is due. Your heart sinks as you read the draft, because you realize it is woefully inadequate. In the article, I offer suggestions for triaging the motion in the short time you have to get it ready for filing.

Mar 31, 2015

The obvious answer is "no." Although the client can certainly have input into the briefwriting, it is counsel's ultimate responsibility to file a brief that complies with the rules.

Despite this obvious answer, the U.S. Supreme Court actually had to reinforce the point recently. In December 2014, when denying a petition for writ of certiorari, the Court simultaneously issued a sua sponte order for petitioner's counsel to show cause why he should not be sanctioned for the petition he filed. (Click here to read the order.)

As reported in the media, the petition was impenetrable, jargon-packed, and very unconventional. (Click here to read a Law 360 story.) In response to the show-cause order, petitioner's counsel filed an impassioned plea for mercy, explaining that his client had "insisted on retaining primary control over the substance of the petition." (Click here to link to a SCOTUS blog story that links to the response filed by counsel.)

On March 23, 2015, the Court issued an order discharging the show-cause order, but reminding all members of the Supreme Court bar that "they are responsible -- as Officers of the Court -- for compliance with the requirement of Supreme Court Rule 14.3 that petitions for certiorari be stated 'in plain terms,' and may not delegate that responsibility to the client." (Click here to find the order.)

So the Court has reminded the Bar that caving to a client's wishes can be perilous. We cannot delegate to the client the responsibility for complying with a court's briefing rules. This, of course, is consistent with ethics rules and standards of conduct, including the Texas Standards for Appellate Conduct.

Mar 19, 2015

After you get a favorable result on some issues but not on others, should you seek entry of a judgment? Can seeking entry of a judgment waive your right to appeal on the issues that you lost?

The answer is yes, you can waive appellate complaints by moving for entry of a judgment. In general, you cannot induce the court to enter a judgment and then complain about that judgment on appeal. But there is a way to preserve your appellate complaints while still moving for entry of judgment.

The Texas Supreme Court recently addressed this issue in Hooks v. Samson Lone Star, L.P., No. 12-0920, 2015 WL 393380 (Tex. Jan. 30, 2015). Hooks received a favorable verdict on some claims, but the trial court had earlier granted a summary judgment against Hooks on a separate claim. When filing his motion for judgment, Hooks specifically stated that he was moving for judgment "without waiving any rights to contest or appeal prior orders of the Court." And above the signature block for Hooks's counsel, the proposed judgment said "Approved as to form."

The Supreme Court held that these reservations preserved Hooks's right to appeal the earlier summary judgment against him. Quoting an earlier case, the Court said "[t]here must be a method by which a party who desires to initiate the appellate process may move the trial court to render judgment without being bound by its terms." Id. at *11.

So, if carefully done, it is possible to move for entry of a judgment but preserve the right to appeal on issues you lost. Before filing the motion, you should carefully read the case law to make sure you do not fall into the traps inherent in this process.

Mar 04, 2014

Because today is Mardi Gras, National Pancake Day, primary election day in Texas, and the date that Sam Houston was named commander-in-chief of the armed forces of the newly independent Republic of Texas, you may not realize that it is also National Grammar Day. But just like last year, I'm here for you.

I'd love to say I've never filed a brief with a typo, but I know that's not true. In fact, I hate reading my briefs after they're filed, because I know I'll find something that I should have caught on the final proofread. But there are a few proofreading techniques that can minimize the chances of missing some glaring error.

Here are some that I use:

Know your own tendencies and check for them. For example, I know that I frequently type "plaintiff's" when I mean "plaintiffs." So, I use the search function to look at all instances of "plaintiff's" or "plaintiffs'" to be sure that I really want it to be possessive, rather than plural.

Have a good reference book handy, just in case. I like "Garner's Modern American Usage."

Actually use the spell-checker in Word. It is easy to think that you have looked at all of the words that Word has underlined in red and that you know that they are not really misspellings. But running through the spell-check will usually find at least one word that is misspelled.

But don't rely exclusively on the spell-checker. You don't want to file a brief that uses "tortuous" instead of "tortious," "arbitral" instead of "arbitrable," "of coarse" instead of "of course," or worse.

Read it out loud. It is amazing what you find when you actually have to read the word out loud instead of just assuming you know what it is.

Proofread the document backward, starting at the last sentence. Some mistakes are easier to find when they are viewed out of context from the rest of the brief.

Find someone else to proofread it, preferably someone who has not read it before. By the time I'm ready to file a brief, I know it so well that I see what I think is on the page, instead of what is actually there. A second set of eyes can catch things that I miss.

What proofreading techniques do you use? In celebration of grammar day, let's get a good list going in the comments.

Jan 28, 2014

Bryan Garner has just published a new column in which he reiterates his suggestion that legal writers should remove all citations from the text and put them in footnotes. I've written before on why I think textual citations are still the way to go (here and here). It seems to me that Bryan's most recent column ignores several realities that counsel against using footnotes.

First, the advice seems to ignore perhaps the most important piece of legal writing advice: remember your audience. Note that both of the people that Bryan "argues" with in his column are sitting judges. Both of them are opposed to his suggestion, and they are not alone. Chief Justice Roberts and Justice Thomas have both said that they prefer citations in the text. (John G. Roberts, Jr., Interview Transcript, 13 The Scribes Journal of Legal Writing 5, 39 (2010); Clarence Thomas, Interview Transcript, 13 The Scribes Journal of Legal Writing 99, 121 (2010).)

Moreover, a 2009 survey of Texas appellate judges showed that 83.2% believe that footnotes should be used sparingly or avoided altogether, while only 20.7% said they were appropriate for case citations. (Access the whole survey here.) If the judges are saying they'd prefer the citations in the text, then legal writers should put them in the text. Otherwise, we risk annoying the only audience that matters.

Second, Bryan seems to forget that the material in the citation is just as much a part of the argument as the statement of the law drawn from the source. When I was a law clerk, footnotes drove me crazy because I always had to check the bottom of the page to find out which court issued the opinion on which the party relied (and when). It makes a difference to the strength of the argument if the case is a recent one from a controlling court (e.g., a case last year from the Texas Supreme Court) or a very old case from an intermediate court or a court from another jurisdiction entirely. Bryan's solution is to build the court and date into the sentence. But trying to do that every time you cite a case makes the text more stilted and formulaic (and thus, less readable) than if the information was just included in a textual citation.

Third, Bryan makes no allowance for how briefs are being read. More and more judges are reading briefs on iPads or other tablets. And I can say from experience that footnotes are even more annoying on a tablet than they are on paper. I use a tablet almost exclusively to analyze and mark up my opponents' briefs. And I quickly tire of scrolling down to see the footnote and then scrolling back up to the text. It is impossible as a writer to know or control how the reader will zoom in or be looking at the document on a screen. And I think in that case, it is imperative to make the reader's job as easy as possible by keeping the citations near the arguments they support.

Fourth, while Bryan says that readers have a hard time with citations in the text, he again ignores the only audience that matters. The judges who disagree with Bryan say that they don't find the citations distracting. Therefore, Bryan's suggestion seems to be a solution in search of a problem.

Fifth, the fact that some judges put citations in footnotes for their opinions does not mean that lawyers should do the same thing. Judges have a different audience than lawyers. And as long as a substantial part of my audience says it prefers citations in the text, that's where I will put them.

I know that our readers have a variety of views on this topic. So, please, let me have it in the comments.

Oct 09, 2013

A little over a year-and-a-half ago, I posted about the impact that the increasing use of e-readers could have on the debate about whether citations should be in the text or in footnotes. Basically, I argued that footnotes are kind of a pain on e-readers, so it could lead to a bigger push to put citations in the text.

Today, Ray Ward has a really interesting post over at his excellent Louisiana Civil Appeals blog. From the annual appellate advocacy seminar sponsored by the Bar Association of the Fifth Federal Circuit, Ray reports on the increasing use of e-readers at the Fifth Circuit. He also reports on a handy new tool that the clerk's office uses to insert hyperlinks to cases (and eventually to the record) into briefs before they are sent to the court. And Ray suggests that the hyperlinks will be much more useful in the text than in footnotes. Check out the post and Ray's blog.

May 22, 2013

"Is it not a strange fate that we should suffer so much fear and doubt for so small a thing? So small a thing!" (J.R.R. Tolkien, The Fellowship of the Ring)

As futher evidence that appellate attorneys are geeks (not that any further evidence is needed), you should know that we have all spent time trying to determine which is better: "attorney's fees" or "attorneys' fees."

Monday's post about the Texas Supreme Court's ruling on supersedeas bonds included a note that Chief Justice Jefferson's opinion referred to "attorney's fees." In response, one of my partners sent me a note asserting that "attorney's fees" can be correct only if there is but one attorney seeking fees. Otherwise, it must be "attorneys' fees." What is a careful writer to do?

Bryan Garner notes here that "attorney's fees" appears to be the prevalent form, but "attorneys' fees" is acceptable. He also observes that some are trying to avoid the issue altogether by using "attorney fees," which Bryan calls "inelegant." Garner also notes that the one variation that must be avoided is "attorneys fees" without any apostrophe at all.

We might also look at legislative and judicial usage as a guide. Garner points out that 42 U.S.C. § 1988 uses "attorney's fees." Of course, Congress being Congress, statutory usage is not consistent. In 28 U.S.C. § 300aa-15(e)(1), Congress used "attorneys' fees." And 15 U.S.C. § 7805(b)(3) uses "attorneys fees" without any apostrophe at all. Texas Civil Practice and Remedies Code chapter 38, which provides for recovery of fees in breach-of-contract cases, uses "attorney's fees." Because legislative usage is inconsistent, it is not much help.

Judicial usage is not consistent either, but "attorney's fees" seems to predominate. Justice Sotomayor used "attorney's fees" in Sibelius v. Cloer, No. 12-236, even though the statute at issue used "attorneys' fees." Click here for that opinion. And as noted in Monday's post, Chief Justice Jefferson appears to prefer "attorney's fees." Raw numbers on which forms appear in opinions may not be reliable because the judge may simply be quoting a statute (even if the judge prefers a different form). In Cloer, for example, Justice Sotomayor used "attorneys' fees" when quoting the statute, but "attorney's fees" otherwise. My sense (based on a wholly unscientfic sampling) is that "attorney's fees" appears more often.

I generally use "attorney's fees," because it appears to be more common and because it does not generally cause confusion, even if more than one attorney is involved. I'm not swayed by the argument that "attorneys' fees" is required for more than one attorney. In some instances, recovery of "attorney's fees" can include fees for certain services performed by a paralegal. Since "attorney's fees" is already shorthand for "fees incurred for professional legal services," I don't think a strict distinction between one attorney and multiple attorneys is warranted. As long as everyone understands what is at issue, I prefer the consistency of "attorney's fees."

Of course, if the controlling statute uses "attorneys' fees," I'll probably use that form throughout my brief, again for the sake of consistency. But I can't see a situation in which I would use "attorney fees" or "attorneys fees," even if that is the statutory phrase.

So, have at it in the comments. Which do you use? Why? Or do we need to find a new way to describe "fees incurred for professional legal services" to avoid all of this?

Mar 05, 2013

You may not know that yesterday was National Grammar Day. Lucky for you, I'm all over it. The festivities over at the Grammarly Blog included a photo contest. One of the entries highlights a classic piece of legalese that should be banned in the age of desktop publishing. Check it out:

This practice may have originated from a desire to stop forgery. It might be easy to change a hand-written 3 to an 8 (or a 7 to a 2, or a 5 to a 6), but it is much harder to change "three" to "eight" (or "seven" to "two," or "five" to "six"). Since legal documents are rarely (if ever) hand-written anymore, this reasoning cannot support the practice today.

Some defend the practice as a safeguard against an extra zero or a misplaced decimal point. But writing a number in both words and numerals runs a serious risk of creating ambiguity or confusion that would otherwise not exist. What if an editor changes one, but forgets to change the other?

Additionally, because of its effect on readability, this practice is especially unjustifiable in persuasive writing. Neither the anti-forgery rationale nor the misplaced-decimal defense can support cluttering up a brief by writing that "the trial court's order should be reversed on three (3) grounds." And even if avoiding this practice results in an extra zero or a misplaced decimal point (such as in an amount of damages), that error would be fairly easy to correct upon discovery, even after the brief or motion is filed.

The best practice is to stick to just one statement of the number and proofread assiduously. I like the rule (embraced by Texas Law Review's Manual on Usage and Style (11th ed.) and others) of generally using numerals for numbers 100 and above and writing the words out for numbers ninety-nine and below. Others (such as Bryan Garner) suggest generally using numerals for numbers 11 and above and spelling out numbers ten and below. Whatever convention you choose, be consistent.

Finally, for some post-National Grammar Day entertainment, check out the rest of the entries in the Grammarly Blog photo contest.

Mar 04, 2013

The ABA Journal recently posted an interesting story about a lawyer being sanctioned for plagiarism in an opposition to a motion. The court accepted the movants' accusation that "almost the entire text of the Opposition is taken from unidentified, unattributed sources." The court ruled that "this type of conduct is unacceptable and, in the Court's view, is sanctionable pursuant to its inherent powers." The sanction was $750.

One interesting twist is that the plaintiff's two lawyers disputed which of them was responsible for the plagiarized opposition. The court declined to delve into this factual dispute, and instead, imposed the sanction on the lawyer who signed the opposition.

It seems common for lawyers to borrow from the work of other lawyers and other sources. But this story is a cautionary tale about the dangers of that in the courtroom.